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Job Candidate Not Discriminated Against in Video Prescreening
Legal Affairs - Workplace Today®

A man was not discriminated against in a video prescreening test based on his ethnicity or age, the Ontario Human Rights Tribunal found.

A man was contacted by a recruiting agency based on his LinkedIn profile, for a contract job in the information technology field. The agency’s client develops networking products. He is a senior engineer with more than 18 years of IT experience, including in California, Canada, and internationally.

He applied for the contract and was asked to undergo a video prescreening test online. The test was conducted by a third party and was fully automated with predefined questions. The man completed the test. He felt that the questions were quite basic and it took him under 15 minutes to complete.

Two days after he completed the test, the recruiting agency told him he had failed. He immediately contacted the agency and said that he was certain he had passed, and that he failed because of discrimination because the assessors could see his age and appearance and hear that he had an accent. He sent the agency the results of a Google search that he felt proved he answered the questions correctly. He said he did not receive an explanation from the agency.

He filed a human rights complaint, alleging discrimination based on race, ancestry, place of origin, ethnic origin, and age.

The recruiting agency said that it never asked or was made aware of his age or ethnic background. The agency noted that the video test was organized by a third party and argued that it had no role in the testing whatsoever.

The company looking for a contractor said that after it thoroughly reviewed the man’s resumé and video screening, it decided to offer the contract to someone who had the needed skills, including in XLT and JavaScript, and who had previous experience working for them—neither of which the applicant had.

In the hearing, the man admitted that during the video screening, he answered “no” when asked if he had XLT and JavaScript skills. He also admitted that his resumé made no reference to XLT. He argued that his resumé only had 50% of the skills the contract required, and yet he was asked to submit a video test, which was proof that the test itself and his appearance of age and ethnicity are what got him screened out.

The Tribunal vice-chair did not accept the man’s argument that being invited to the video test and then failing it proved he was discriminated against based on his ethnicity. “Even if the applicant’s resume did not expressly contain any reference to XLT, the invitation to complete the screening was an opportunity where the applicant could have demonstrated that he had this critical skill, which he admittedly did not. In my view, this also suggests that even if the respondents had pre-screened the resume, which they denied, there was no negative inference from his extensive experience of over 18 years which could suggest an older applicant, or his name in the resume, which suggests a non White anglo-saxon ethnicity,” she wrote.

The Tribunal vice-chair also did not accept the man’s argument that he was discriminated against based on age. “The applicant contends that anyone in the industry ought to know that someone with his level of seniority and experience will have these skills despite his negative answers. The applicant asserts that his answers cannot be the basis of the denial because it is common knowledge that the IT industry discriminates on the basis of age and that anyone over 40 years is seen as old. I am not persuaded by the applicant’s explanation in the face of his admitted responses to the screening questions that indicated he did not have the specific skills or knowledge sought in the process. Expecting the respondent to infer from his experience that he ought to have the skills required despite his negative answers is unreasonable in my view.”

The Tribunal vice-chair found that the case had no reasonable prospect of success, and dismissed it. “Generally, any recruitment process may involve candidates that may not put forward their best answers or performance during an interview or screening process. While hindsight is as they say 20/20 and it may seem unfair or obvious to the applicant that he had these requisite skills, that is not sufficient to ground a claim of discrimination or make the link that the decision was based on his [Human Rights] Code characteristics.”

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